Citation Nr: 21071076 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-59 370 DATE: November 29, 2021 ORDER Entitlement to an increased evaluation for right knee medial meniscal oblique tear, posterior horn, with limitation of flexion, higher than 10 percent prior to June 2, 2021, and higher than 20 percent, thereafter, is denied. Entitlement to a compensable evaluation for right knee limitation of extension is denied. Entitlement to a separate rating of 20 percent for impairment of the right knee medial meniscal oblique tear, posterior horn is granted. Effective May 2, 2015, entitlement to an evaluation of 10 percent for right knee instability is granted, and 20 percent rating is granted effective June 2, 2021. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT 1. Prior to June 2, 2021, the Veteran's right knee medial meniscal oblique tear, posterior horn, manifested by pain in the knee joint, flexion at worst to 105 degrees and extension at worst to 0 degrees, but did not more nearly approximate limitation of flexion to 30 degrees. 2. From June 2, 2021, the Veteran's right knee medial meniscal oblique tear, posterior horn, manifested by pain in the knee joint and flexion at worst to 30 degrees and extension to 5 degrees, but has not more nearly approximated limitation of flexion to 15 degrees or limitation of extension to 10 degrees. 3. The Veteran's right knee medial meniscal oblique tear, posterior horn, manifests impairment of the semilunar cartilage with joint pain, locking, and effusion. 4. Effective May 2, 2015, the Veteran's right knee medial meniscal oblique tear, posterior horn, instability, is manifested by slight instability. 5. Effective June 2, 2021, the Veteran's right knee medial meniscal oblique tear, posterior horn, instability, is manifested by moderate instability. CONCLUSION OF LAW 1. The criteria for entitlement to an evaluation higher than 10 percent prior to June 2, 2021, and higher than 20 percent thereafter, for right knee limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4. 71a, Diagnostic Code 5260. 2. The criteria for a compensable rating for right knee limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 3. The criteria for a separate rating of 20 percent, but not higher, for impairment of the semilunar cartilage of the right knee are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5258. 4. Effective May 2, 2015, the criteria for a 10 percent evaluation, but no higher, for right knee instability have been met. 38 U.S.C. § 1115; 38 C.F.R. § 4.1, 4.7, 4.71a, Diagnostic Code 5257. 5. Effective June 2, 2021, the criteria for a 20 percent evaluation, but no higher, for right knee instability have been met. 38 U.S.C. § 1115; 38 C.F.R. § 4.1, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from January 1998 to June 2012. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. Factual Background In a September 2013 rating decision, the RO granted service connection for a right knee medial meniscus tear with a 10 percent evaluation, on the basis of limitation of flexion, under Diagnostic Code (DC) 5260. In a January 2016 rating decision, the RO continued the 10 percent evaluation under DC 5260. In an August 2019 rating decision, the RO granted a separate 10 percent evaluation for right knee medial meniscus tear on the basis of instability, with a 10 percent evaluation from October 4, 2016, and a noncompensable evaluation from July 23, 2019. The separate evaluation on the basis of instability is under DC 5257. In a January 2021 rating decision, the RO granted an increase evaluation for right knee medial meniscus tear, on the basis of limitation of flexion (DC 5260), from 10 to 20 percent, effective June 2, 2021. The RO granted a separate evaluation on the basis of limitation of extension (DC 5261), with a noncompensable evaluation, effective June 2, 2021. In May 2015, the Veteran filed for an increased evaluation of his right knee. In January 2016, the Veteran underwent an examination. He reported stinging and stabbing pain in the medial and anterior right knee. He reported intermittent effusion, typically after walking 2-3 blocks. He reported occasional popping when he shifts his weight. His symptoms were aggravated by standing and walking for long periods. Symptoms were improved by wearing a knee brace, using ice and or heat, and taking ibuprofen. He wore a knee brace approximately 2-3 times per month. He denied flare-ups. He described functional impairment as pain with climbing stairs and says he cannot stand longer than an hour or hour and a half. Range of motion was flexion to 130 degrees, extension to 0. There was pain in flexion, with no resultant functional loss. He did not have pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or soft tissue. He had crepitus. There was no functional loss after three repetitions. The examination was neither medically consistent nor inconsistent with his statements describing functional loss with repetitive use over time. The examiner determined that pain, weakness, fatigability, or incoordination did not limit functional ability with repeated use over a period. There was no ankylosis, or reduction in muscle strength. There was no history of instability or subluxation. He reported small intermittent effusion in the right knee, typically occurring after walking 3 or more blocks, that resolves after resting for a few hours. He did not have patellar dislocation, stress fracture, exertional compartment syndrome, or any other tibial or fibular impairment. The examiner noted a history of a meniscal tear, frequent episodes of joint pain, and frequent episodes of joint effusion. In a May 2016 statement, the Veteran reported his right knee was experiencing more pain and discomfort. He expressed dissatisfaction with his prior examination findings. The Veteran underwent an examination in October 2016. He reported swelling with prolonged standing or walking greater than about 4 hours. He denied flare-ups or functional loss. Range of motion testing revealed flexion to 130 degrees with pain, and extension to 0 degrees. There was no evidence of pain with weight bearing. There was tenderness to palpation along the medial joint line. There was no additional functional loss or range of motion after three repetitions. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period, as the examiner was unable to examine the Veteran under those conditions. On joint stability testing there was 1+ medial instability. He had a history of a posterior horn meniscus tear. The Veteran underwent another examination in July 2019. He reported increased pain and reduced range of motion over the last 18 months. He had issues with squatting, stairs, and standing for long periods of time. He reported pain located to the medial portion of the right knee. He took motrin as needed for pain. He denied flare-ups. Functional loss was described as impairment with squatting and walking for long periods of time. Range of motion testing revealed flexion to 105 degrees with pain, and extension to 0 degrees, with functional loss with squatting. He reported sharp pain at the medial portion of the knee. There was no evidence of pain with weight bearing, or of crepitus. There was no additional loss of function or range of motion after three repetitions. The examination was neither medically consistent or inconsistent with the Veteran's statements of functional loss with repetitive use over time or during a flare-up. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner stated after review of the records, and using medical knowledge and expertise, there was no basis to offer additional losses of function or motion with repeated use over time. The Veteran denied flare-ups. There was no evidence of ankylosis. There was no history of subluxation, effusion, or instability. Joint stability testing was normal. As for his meniscus condition, he had frequent episodes of joint locking, and of joint pain. Functional impact was described as when working he has issues with squatting and walking for long period of time. There was evidence of pain on passive range of motion testing, and of pain when the joint is used in non-weight bearing. In a September 2019 statement, he relayed his belief that the July 2019 examiner did not provide adequate testing. At the Board hearing, he argued that the examination was inadequate, and his symptoms had worsened. He reported experiencing flare-ups one to two times per week. He reported wearing knee braces two to three times per week. He reported his knees give out. He was not working. The Veteran underwent an examination in June 2021. He reported knee pain improved with Motrin/Tens unit/ice/ rest, that worsens with standing long periods or walking up or down stairs for long periods. He described anterior medial sharp and stabbing pain with swelling, but denied erythema, deformity, and bruising. The swelling worsens the pain. He reported right knee flare-ups that occur daily that are moderate to severe in nature, lasting anywhere from hours to days. Flare-ups are precipitated by standing long periods, walking long distances and stairs. He described functional loss and impairment, he reported it keeps him from his normal occupation as a mechanic. He is unable to stand for long periods. He is unable to perform steady labor for long periods without causing long events of pain and flare ups. He reported his right knee has periods where he feels it gives out or feeling unstable. He reported isolated effusion to the anterior patella and denied capsular effusion. Range of motion testing revealed flexion to 45 degrees, and extension to 0. He had pain in flexion. He had pain in weight bearing, active motion, and passive motion, that causes functional loss. There is no evidence of crepitus. There is evidence of localized tenderness or pain on palpation of the joint or soft tissue. There is no additional loss of function or range of motion after three repetitions. He was not examined immediately after repeated use over time, or during a flare-up. Pain, weakness, fatigability, and lack of endurance limit functional ability with repeated use over time, and during a flare-up, with the estimated range of motion immediately after repeated use over time being flexion to 30 degrees and extension to 5 degrees. The Veteran has interference with standing, disturbance of locomotion, interference with sitting and swelling. He has no atrophy or ankylosis. He has recurrent subluxation or persistent instability. He does not have a history of recurrent patellar dislocation, shin splints, stress fractures, or any other tibial or fibular impairment. He reported working as a mechanic. He reported being unable to stand for long periods, and is unable to place pressure on his knees, which would interfere with a maintenance occupation of low or ground settings. He has moderate recurrent subluxation of the right knee. The right knee joint stability testing cannot be performed because pain limits the ability to perform McMurry/Lachman/drawer valgus or varus. He was unable to tolerate with significant guarding of the joint. Legal Criteria The Veteran's right knee is evaluated under DC 5260, based on limitation of flexion; DC 5261, based on limitation of extension, and DC 5257, based on instability. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and after the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals considering laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. In the present case, there is no change in DC's 5260 or 5261. The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). As the Veteran has not at any time been found to have ankylosis, tibia and fibula impairment, or genu recurvatum, these diagnostic codes are not applicable. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ratings can be assigned for knee subluxation or instability under Diagnostic Code 5257. 38 C.F.R. § 4.71a. The rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic codes only; however, for the period beginning February 7, 2021, the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). "Slight," as relevant to a physical condition, is defined as "small of its kind or in amount." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to "mild," which is defined as "not severe" or temperate; with "Temperate" being defined as "keeping or held within limits" and "not extreme or excessive." "Moderate" is defined as "tending toward the mean or average amount," "not violent, severe, or intense," and "limited in scope or effect." Id. "Severe" is defined as "very painful or harmful" or "of a great degree." Id. The term "severe" is used throughout the rating schedule, including in Diagnostic Code 5257, to indicate a very great degree of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific diagnostic code. Within the context of Diagnostic Code 5257, which establishes a successive, tiered rating structure, it represents the highest or most extreme level. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. "Persistent" is defined as "continuing or inclined to persist in a course" with "continuing" defined as "constant" and "persist" defined as "to continue to exist." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device or bracing for ambulation. Lastly, regarding patellar instability, a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker warrants a 30 percent rating, which is the highest allowable rating for patellar instability. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id., Note (2). In considering range of motion ratings, it is important to consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). 1. Entitlement to an increased evaluation for right knee limitation of flexion, of 10 percent prior to June 2, 2021, and higher than 20 percent thereafter. 2. Entitlement to a compensable evaluation for right knee limitation of extension. The Veterans right knee limitation of flexion is evaluated under DC 5260 with a 10 percent prior to June 2, 2021, and 20 percent thereafter. The Veteran's right knee limitation of extension is evaluation under DC 5261, with a noncompensable evaluation effective June 2, 2021. Based on the evidence cited above, the Board finds that there is no basis to grant an increased rating based on limitation of flexion or extension. Even considering the Veteran's subjective complaints of pain, the evidence of record does not show any additional limitation of motion or functional impairment that would support an increased evaluation under either DC 5260 or 5261. The Veteran is in receipt of service connection for left knee instability under DC 5257 and it is discussed below. As to meniscal conditions, the Veteran has a meniscal tear, and is being granted a separate evaluation under DC 5258, which is also discussed below. The Veteran has not had removal of semilunar cartilage, as such, there is no basis to assign a separate rating based on the criteria in DC 5259. 38 C.F.R. § 4.71a, Diagnostic Code 5259. For the period prior to June 2, 2021, his flexion was at worst to 105 degrees. There were no reports of flare-ups prior to that time frame. There was no indication of additional limitation following repetitive use or during a flare-up. To meet the criteria for the next higher evaluation of 20 percent he would have to have flexion of the knee limited to 30 degrees. For the period from June 2, 2021, his flexion was at worse to 30 degrees. A higher evaluation of 30 percent is not warranted unless the evidence shows limitation of flexion to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. At the June 2021 examination, there was no additional limitation in range of motion following three repetitions. He reported flare-ups precipitated by standing or walking for long periods. He had pain in weight bearing, active, and passive motion that result in functional loss, of a restricted movement. Pain, weakness, fatigability, and lack of endurance limit functional ability with repeated use over time, and during a flare-up, with the estimated range of motion immediately after repeated use over time being flexion to 30 degrees and extension to 5 degrees. He has interference with standing, disturbance of locomotion, interference with sitting and swelling. Even considering the Veteran's reports of painful motion and flare-ups, the Board finds that a higher rating for limitation of flexion is not warranted. As to limited extension, the evidence shows that the first indication of painful and limited extension, was not until the June 2021 examination. The lowest extension demonstrated at that examination was to 5 degrees, with pain. A higher evaluation is not warranted unless the evidence shows limitation of extension of 10 to 14 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Even considering the Veteran's reports of painful motion and flare-ups, the Board finds that a higher rating for limitation of extension is not warranted. The Board has considered the Veteran's lay statements regarding the functional impact of his right knee disability. The Veteran is competent to report his own observations regarding the severity of his disability, including reports of pain and decreased mobility. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). His statements are consistent with the ratings assigned. At the 2016 examinations functional impairment was described as pain with climbing, and prolonged standing. In 2019, functional loss was described as impairment with squatting and walking for long periods of time. He described functional loss and impairment as difficulty standing for long periods or perform long periods of steady labor without causing long events of pain and flare ups. The Board acknowledges that the evidence, including the Veteran's lay statements indicate that he had chronic knee pain, and has considered 38 C.F.R. § 4.59 regarding painful motion. Under 38 C.F.R. § 4.59, with any form of arthritis, actually painful joints are entitled to at least the minimum compensable rating. See also Petitti v. McDonald, 27 Vet. App. 415, 425 (2015) ("Under 38 C.F.R. § 4.59, the trigger for a minimum disability rating is an 'actually painful, unstable, or malaligned joint [].'"). In this case, however, the Veteran has already been assigned a 10 then 20 percent evaluation on the basis of limitation of flexion, for the entire period on appeal. See Petitti, 27 Vet. App. at 425. The 10 and 20 percent evaluation for limitation of flexion already considers the Veteran's limitation of motion hampered by pain, repetitive motion, and flare ups, as these symptoms were evaluated on examination to the extent feasible. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. There are no consistent reports of exacerbation. In 2016 and 2019, he denied flare-ups. In 2021, flare-ups were reported, and the examiner estimated during a flare-up his flexion would be to 30 degrees, and extension to 5. Even with the estimation of loss of motion during a flare-up, there remains no indication he suffers a more severe disability picture warranting a 30 percent evaluation for limitation of flexion, or a 10 percent evaluation for limitation of extension. The preponderance of the evidence is against an increased evaluation under DC 5260 and 5261, or an additional separate rating under any other Diagnostic Code, with the exception of DC 5257 and DC 5258 discussed below. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; as the preponderance of the evidence is against assignment of any other higher ratings, it is not applicable. 38 U.S.C. § 5107. 3. Entitlement to a separate rating of 20 percent for impairment of the right knee semilunar cartilage throughout the claims period is granted. The Board finds that a separate 20 percent evaluation is warranted for the Veteran's right knee semilunar cartilage impairment under Diagnostic Code 5258. Under this diagnostic code, a maximum 20 percent evaluation is possible for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The lay and medical evidence establishes impairment of the Veteran's meniscus and cartilage during the initial claims period, to include locking, joint pain, and effusion. Joint effusions have been reported throughout the claims period. He reported joint effusions and pain in 2016. Most recently he was found to have frequent locking, as well as pain and effusions. As the evidence establishes semilunar cartilage dysfunction and frequent episodes of pain and effusion into the right knee joint, a 20 percent rating is warranted under Diagnostic Code 5258. 4. Entitlement to an increased evaluation of right knee instability higher than 10 percent prior to October 4, 2016, and higher than 0 percent thereafter. The Veteran is in receipt of a 10 percent evaluation on account of instability effective October 4, 2016, and a noncompensable evaluation thereafter, under DC 5257. Prior to February 7, 2021, under Diagnostic Code 5257, a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted when there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. The words "slight," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Diagnostic Code 5257 is based upon instability and subluxation, not limitation of motion, as a result, the factors set forth in 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 do not apply. DeLuca, supra. Finding all reasonable doubt in the Veteran's favor, a 10 percent rating under Diagnostic Code 5257 is warranted for the Veteran's right knee instability effective May 2, 2015, and a 20 percent evaluation is warranted from June 2, 2021. The Veteran filed a claim for increase of his right knee condition May 2, 2015. He has continuously sought an increase in his evaluation since that time. Accordingly, as the right knee instability is part of the original right knee claim for increase, the effective date of the grant of 10 percent, dates back to the original date of claim for increase, May 2, 2015. At the January 2016 examination, he reported needing to wear a brace a few times per month. He had impairment with climbing stairs and couldn't stand longer than an hour or so. On examination in October 2016, he had 1+ medial instability. In July 2019, the examiner stated he had no instability. However, at the Board hearing, the Veteran reported his knee gives out and wearing a knee brace two to three times per week. On examination in June 2021, he reported there are times when his knee feels unstable. Joint stability testing was not performed because pain limits the ability to perform McMurry/Lachman/drawer valgus or varus. He had moderate subluxation of the right knee. Thus, the Board finds that by resolving all doubt in the Veteran's favor, he met the criteria for a 10 percent rating pursuant to DC 5257 effective May 2, 2015, and a 20 percent effective June 2, 2021. Based on the evidence, there is no indication that prior to June 2, 2021, there was moderate recurrent subluxation or lateral instability, to warrant a 20 percent evaluation. Slight, moderate, and severe instability is not defined by the VA Schedule for Rating Disabilities. In the instant case, prior to June 2, 2021, his instability was never worse than 1+ on testing or identified as worse than slight. While his symptoms demonstrate pain in weight bearing, the evidence fails to point towards a more severe disability picture to warrant an evaluation higher than 10 percent. From June 2, 2021, there is evidence of moderate subluxation, and therefore a 20 percent is warranted. However, the record contains no indication of severe recurrent subluxation or lateral instability to warrant a 30 percent evaluation. Thus, in sum, the evidence supports a rating of 10 percent pursuant to DC 5257 for the period prior to June 2, 2021, and 20 percent thereafter. As is stated above, as of February 7, 2021, DC 5257 contains two sections for taking other impairment of the knee, the first for recurrent subluxation or instability, and the second for patellar instability. As for an evaluation under the DC 5257 criteria as of February 7, 2021, there is no basis to warrant an increase under the new criteria. To warrant an increase of 20 percent under recurrent subluxation, there must be either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. There is no evidence of either the criteria in (a) or (b). Lastly, regarding patellar instability, a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. Here, the Veteran does not have a diagnosed condition of patellofemoral complex with recurrent instability after surgical repair. For the period from June 2, 2021, to qualify for a 30 percent evaluation there must be unrepaired or failed repair of complete ligament tear which causes persistent instability, or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker; neither of which the Veteran has, as such, a higher evaluation under the new criteria is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for obstructive sleep apnea is remanded. In April 2020, the Board remanded the claims of entitlement to service connection for a left knee disability and entitlement to service connection for obstructive sleep apnea. The Board remanded so that an opinion could be obtained addressing the Veteran's left knee complaints and etiology of his knee symptomatology, and the etiology of obstructive sleep apnea. The record contains an examination request in April 2020 for the claims on appeal. There is an undated note indicating that the Veteran cancelled his scheduled examinations. In an April 2021 statement, the Veteran reported he declined an examination on the grounds of COVID, and he was not provided requested information that he had asked for, and the reason for the examination. He reported asking for a verification that it was actually VA contacting him. He was then scheduled for a knee examination and did attend in person; however, no opinion was rendered as to the etiology of the left knee claim. The Veteran was not scheduled for an obstructive sleep apnea examination. The Board finds the Veteran should be afforded another opportunity for an examination. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. At the 2021 examination, the Veteran relayed that his ability to work has been impacted by his knee conditions. In this case a TDIU claim has been raised by the record. Pursuant to the holding in Rice, a claim for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). A remand is needed to obtain relevant employment information. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination addressing the etiology of his left knee disability. The examiner is asked to answer the following: a) Does the Veteran currently have a left knee disability OR functional impairment in the left knee joint that is at least as likely as not related to his service? b) Is it at least as likely as not that any diagnosed left knee disability OR functional impairment in the left knee joint was caused OR aggravated by the service-connected right disability? The examiner is asked to address medical records, and the Veteran's contentions. The examiner is also asked to provide a rationale for all opinions reached. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. 2. Schedule the Veteran for an examination addressing the etiology of his obstructive sleep apnea (OSA). The examiner is asked to answer the following: a) Does the Veteran currently have OSA that is at least as likely as not related to his service? b) The examiner is asked to address medical records, and the Veteran's contentionsincluding his observations of apneas around 2013 (his active duty ended in June 2012) and his in-service dental treatment. The examiner is also asked to provide a rationale for all opinions reached. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. (Continued on the next page) 3. Ask the Veteran to submit an updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.